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Monthly
Lecture: 02-2006
LEGAL PRINCIPLES
IN THE
JUSTIFICATION OF THE USE OF FORCE
PREAMBLE
The legal right to use force,
even deadly force, in self-defense and the defense of others in the U.S. has
been a settled discussion in the law since before the formal founding of the
country. No other conclusion can be
drawn by looking broadly at the law in the respective jurisdictions across the
400 year time span of European settlement to the present day.
With the exception of a brief
period, largely the third quarter of the 20th Century, and a few locations,
predominately those with populations enamored with the Franco-German political
model, U.S. law has recognized the right of decent, productive, ordinary
citizens to use force to interrupt unlawful violence directed against
themselves or another person.
Viewed across the sweep of
history for those centuries, it is reasonable to argue that the law has sought
to define the circumstances that would allow finders of fact to determine the
difference between the necessity of the defender citizen to strike a blow and a
person who ignores or manipulates circumstance to mask an act laden with
criminal intent.
A similar sweeping view would
suggest good evidence exists to argue the current trend in the law is to
correct some of the constructs bequeathed during that quarter century and
promulgate law that returns to concepts long in practice, though largely
lacking in specific legal definition.
By way of example, the law 50
years ago regularly restricted the justification of defense of others to those
with whom the defender had a “special” relationship. Hence, the current “short-list” advocated in some currently
operating training schools. The
requirement for a defender to have a “special” relationship with the person
defended is largely gone from defense of others law. Another shift in the law that began about 20 years ago is the
redefinition of “immanent” from immediate to inevitable in the foreseeable
future, as seen in the “batterer syndrome”.
When viewed from this landscape
perspective, the law found itself with two problems to finesse. The first was to find a way to objectify a
subjective occurrence. The law had to
create models of fiction that could allow finders of fact to view the conduct
of a defender with sufficient objectivity to sort an act of necessity from
criminal intent. Because real-life
experience teaches that infinite combinations of circumstance must be
interpreted on an instance by instance basis, the law had to allow for
sufficient “wiggle room” on the part of the defender and the finder of fact for
the model to be useful. The result was
the “reasonable and prudent man operating in the same or similar circumstance”
standard.
The second problem was to
provide the defender with access to a means of defensive tools. Returning to our landscape view, the issue
of carrying weapons about in U.S. has largely been a process of trying to
define who was fit to be trusted with such responsibility. While it was common for the law to preclude
anyone without a license to carry concealed weapons, evidence would suggest
that as a matter of practice, “people of good character” found with a concealed
weapon were ignored. Enforcement was
confined to those operationally defined as untrustworthy, with the definition
varying by time and place.
The historical record suggests
that the laws restricting the carrying of weapons in the south and west were
designed to keep weapons out of the hands of former slaves. The laws restricting the carrying of weapons
in the east and mid-west were written in response to labor violence connected
to the influx of immigrants from southern and eastern European countries and
the laws written in the far west were written to control Asian immigrant access
to weapons.
The influence of criminal gang
violence starting in the 2nd quarter of the 20th century
and America’s flirtation with the rejection of the construct of individual
responsibility led to a more universal enforcement of concealed carry
restrictions and difficulty for the ordinary citizen to acquire a carry
license.
By the 4th quarter of
the 20th century, state legislatures were defining those fit to have
a license to carry concealed weapons for employment in self-defense as anyone
who by personal history and demonstration was unfit. The nearly universal three disqualifiers are: a felony
conviction, a history of mental illness and a history of substance abuse. The common thread of these three categories
is that each demonstrates in the individual with such history a proven lack of
judgment requisite in a person walking about in society while armed. Not surprisingly, a person with a proven
record in one of these three lapses of judgment, probably has one or more of
the other two categories operant, whether a matter of record or not.
The rhetoric of those who reject
the concept of personal responsibility aside, an argument can be made that the
current trend in the law to recognize that any American citizen of good
character and repute is entitled to the right of self-defense as well as a
means to travel about with a means of defense, is more declarative of our
commonality as Americans than all of the assertions of those who would plead us
as pre-adolescents engaged in whining fits of jealousy.
With this backdrop, let’s look
at the intent of the legal constructs that form the operating milieu of legally
sufficient justification for using force against another person.
I.
Assuming there is an incident where a defender is required
to use force to reduce the threat to an acceptable level:
A. Police
will be summoned by:
1. One of
the parties to the incident.
2. An
onlooker.
B.
The occurrence of injuries and the increase in severity of
injuries elevates the likelihood of police response and the bringing of charges
against the defender.
C. The form
of force and the level of injuries will determine the nature of charges the
defender will face.
1. Homicide
2. Assault
of various forms.
3. Intimidation
of various forms
4. Unlawful
restraint.
II.
The Players and their roles.
A. Patrol
Officers will make the initial response to the scene.
1. If there
is no death or danger of death, they may handle the entire incident.
2. Collection
and preservation of physical evidence will be cursory and concluded quickly.
3. Statements
will be done largely at the scene.
Follow-up with other witnesses will be cursory. Little attempt to identify and locate all
potential witnesses is likely.
4. They
will probably make any charging decisions at the scene and proceed with lodging
of charges.
5. If the
department is small, it is possible that patrol officers will be the totality
of the investigation response, even in the event of a death.
6. If there
is a death, or the possibility of death as a result of the incident, the patrol
officers will likely hand the case to detectives.
NOTE: When patrol
officer arrive they will likely ask, “What happened”? Your response is most likely admissible in a court proceeding,
even if you have not been Mirandized.
On the other hand, a response from you of “I would like to speak with my
lawyer!” will probably subject you to a charging decision made without the
benefit of your input. Patrol officers
will not be inclined to wait for a lawyer to arrive, especially after
mid-night. They will probably have the
benefit of statements from the “victim” and any of his cohorts. The decision will probably be made with, or
without your input.
B.
Detectives
1. Short of
a death, they will make the charging decisions.
2. The
involvement of detectives likely means that more physical evidence will be
collected, analyzed and interpreted.
3. Many
more statements will be taken. Witnesses
and potential witnesses will be identified, located and interviewed. Those interviews will be compared to with
one another and with the physical evidence to create an interpretation of what
likely occurred in the event.
4. If the
incident involves a death, the evidence as well as their interpretation will be
referred to the prosecutor for a charging decision.
NOTE: At some point
detectives will want to take a statement from you. The involvement of detectives usually means the process is slowed
down by the methodical nature of their work.
There will usually be time for a lawyer to arrive to represent you. It is likely the involvement of detectives
will allow time for you to provide your story for use in the charging decision.
C. Prosecutors
1. They
will be involved in any charging decision where a death occurs. They will often be involved in charging
decisions where serious bodily injury occurs.
2. In such
cases, it is common for a prosecutor to be at the scene and at the station
while processing and interviewing is in progress.
D. Defense
lawyer
1. He will
be your spokesman.
2. He can
transmit your story to police and prosecutors in a fashion that the statement
can not be attributed to you at the time of trail.
3. The
charging decision can be made with the benefit of a lawyer for the state
reviewing the evidence that includes your rendition of what occurred, presented
by a trial lawyer who understands and can convey the meaning of the evidence at
trial.
NOTE: Remember that
once the decision to charge you is made, the impetus of the party’s shifts from
trying to learn what happened to trying to win the case.
·
This is now a contest between “Champions”.
·
Facts become subservient to the rules of evidence and each champion
will try to exclude that evidence which he deems harmful to his case.
·
A trial is a form of ritualized fighting as in dueling, where the
rules determine what is and is not “fair”.
·
The truth will not necessarily set you free, but a lie, or apparent
lie will lock you up!
E.
Witnesses
1. Direct
evidence witnesses.
2. Indirect
evidence witnesses
3. Expert
witnesses
4. Character
witnesses
III.
The Process
A. Reason
and Rationality
1. Reason
and rationality are constant themes in the American trial system.
2. Reasonable
man standard
3. A
reasonable and prudent man acting in like or similar circumstances standard.
4. Reasonable
doubt standard.
5. Rational
decision standard.
NOTE: Reasonableness
varies with the specifics of the occasion.
If retreat is required “if it can be accomplished in complete safety”,
the ability of the Practitioner to reach a place of safety will be measured
differently depending on whether the Practitioner is quick and agile or is
infirmed.
Another issue of reasonableness arises with the past
experiences of the Practitioner. A
person who has experienced spousal battering, complete with the ritualistic
aspect, and perceives a life threatening incident in the making, will have
their actions viewed from that experience.
Likewise, specific knowledge, in the possession of a
defender that an assailant has a reputation for violence can be considered by
the finder of fact as the actions taken by the defender is reviewed.
B.
Reasonable and prudent man.
1. Is a
fictional legal character with abstract objective qualities that form a
standard by which to review the subjective determinations and interpretations
of a real person in an actual set of circumstances.
NOTE: The subjective
portion of this standard will include any knowledge residing in the particular
person asserting necessity in the specific occasion coupled with the fair conclusions
one could draw from that cumulative knowledge and circumstance. That includes knowledge derived from
experience, education and training.
The Practitioner must be prepared to articulate the totality
of his knowledge and the operating circumstance and the derivative conclusions
that formed his belief in the necessity of his actions.
C. Reasonable
doubt.
1. Not a
doubt constructed to avoid an unpleasant duty but one that arises fairly out of
the evidence.
D. Rational
decision
1. Comes
from a careful review of the relevant facts and an application of the law.
2. Verdicts
must be rational, not speculative.
E.
Burden of proof
1. As a
general rule, the burden of proof is always on the prosecution.
2. Are
required to prove each element of an offense beyond a reasonable doubt.
3. Must
refute any defenses
a. True
defense
1) alibi
2) SODDI
3) TODDI
b. Affirmative
defense
1) Justification
2) Prosecution
must refute a claim of justification beyond a reasonable doubt.
3) Rare
occasion where the defense has a burden of proof.
4) Must
demonstrate the elements of justification to a preponderance of the evidence
standard.
5) If the
prosecution can refute one of the elements of justification beyond a reasonable
doubt, he can prevent the defense from arguing justification to the jury.
6) The jury
will be precluded from considering a claim of legal justification.
7) The
defense can negate a claim of justification by introducing evidence
inconsistent with an element of justification.
8) Eg. An assertion by the defendant that the gun
discharged “accidentally.
NOTE: Available studies
from different times and places suggest that of the total number of homicide
charges filed; about 22-25% have an element of self-defense involved. Self-defense is different than legal
justification. Self defense is an act
of self-preservation that may or may not meet the legal requirements of
justification.
Those with an absolutist view of “self-defense” query with
incredulity if a person with a criminal record or is actively involved in
criminal conduct is not availed the right of self-defense. The answer is that he certainly has aright
to defend himself, he may, however have difficulty with one or more of the
elements of justification.
4. Elements
common to justification defense
a. Recklessness
and negligence
1) Expect
problems with a justification defense if you decide to go for a stroll in a
section of town known for a high incidence of street robberies while carrying a
transparent bag full of fifties.
2) Avoidance,
general
b. Provocation
1) If an
antagonist makes accusations concerning the level of intimacy between you and
your mother, it is not advisable to non-verbally indicate him that he is “#1”
with you.
2) Avoidance,
specific
c. Retreat
1) Disengage
NOTE: The practical
effect of the retreat rule is to punish those parties who choose to stay and
continue the engagement.
d. Excessive
force
1) You may
not use force greater than that offered by the antagonist.
2) The
level and amount of force may not exceed that which is required to reduce the
threat to an acceptable level.
3) Any blow
delivered that is outside the requirements of “necessity” is not justified.
NOTE: Training
techniques, when reviewed under the “necessity” standard, will examine the
necessity of each blow delivered.
F.
Mindset
1. Mindset
as used in this circumstance refers to the state of mind of the Practitioner as
he struck the blow.
2. Mens
Rea.
a. Guilty
mind.
b. The jury
will be instructed of a legal construct that permits them to infer intent when
a deadly weapon is employed against a vital part of the body.
c. The
intent in justification is to interrupt the violent actions of another.
d. Unintentional
injury or death resulting from the use of a deadly weapon and is grossly
reckless or negligent conduct that likely rises to a criminal level.
1) Reckless
and negligent conduct is that which deviates from a standard of care a person
in like or similar circumstance would be expected to employ.
2) Shootings
that result from a violation of the 4 Rules would occasion this form of
criminal prosecution.
3) R&N
differs from other states of mind that must be established through the
evidence.
4) Regarding
R&N, the state of mind is irrelevant.
The issue is the standard of care exercised did not those of a R&P
man in the same or similar circumstance.
e. 3
conditions reviewed to determine R&N act.
1) Potential
to reasonably foresee harm that might result from your actions.
2) The
probability that harm could occur
3) The
burden the actor would have to bear if he did not take the action.
4) The
higher the potential for an unintended harm to come from an action, the higher
the certainty of that harm to the actor must be to justify his actions.
f. Reckless
behavior.
1) Generally,
reckless behavior requires a higher showing of disregard in the conduct of the
actor.
2) Requires
a showing the actor showed a disregard for the apparent danger
occasioned by his actions.
3. Motive
as part of mens rea.
a.
Malice is a part of murder.
b. Malice has a specific legal
definition.
c. Recklessness, hardness of heart,
cruelty, a mind regardless of social duty.
d. The actor’s actions have a substantial
and unjustifiable risk of causing harm.
4. Necessity
as motive.
a. Gives
rise to the concept of retreat, which is actually a tactic recognized as
disengagement.
b. Each
blow delivered must be, in and of itself, necessary
c. The
use of force must be necessary to be justified.
NOTE: Necessity is
the product of a two pronged test, subjective and objective.
The Practitioner must believe it is necessary to use force
in the present circumstance. He must
show that his subjective interpretation is derived from objective facts.
Inversely, the Practitioner who has objective facts from
which to interpret a real threat, but does not subjectively believe force is
needed can not reach the necessity standard.
The Practitioner can not rely on a checklist to justify the use of
force.
That is the fallacy of the AOJ model.
5. Proportionality
as evidence of motive.
a. . Proportionality is that force which is equal
to that force offered and/or just enough additional force to reduce the threat
to an acceptable level.
1) Proportionality
is that force which is equal to that force offered and/or just enough
additional force to reduce the threat to an acceptable level.
NOTE: OC sprays can
be used as part of the disengage, escape and evade strategy. Even if the spray is not used directly on
the assailant, it can be used to contaminate the path as the assailant gives
pursuit.
6. Immanent
as motive.
a.
Statutes and case law must be consulted for the standard that operates in the
specific jurisdiction.
b.
Immediately means at the present moment.
c. In
the last 20 years, immanently has come to be seen as in the presently
foreseeable future. This view came
about in response to the “battered” syndrome.
d.
Traditionally, immanent and immediate were used interchangeably.
NOTE: A bonafide
threat to kill is not justification for a pre-emptive strike. It is available to use as a circumstance to
assess the actions of a VCA on an occasion when that threat combined with other
actions gives rise to a conclusion that the intent of the VCA is lethal.
7. Castle
doctrine
a. In
jurisdictions where the castle doctrine is the law, the doctrine generally
stands for the position that a person in his home or place of business is not
required to retreat from an attack.
b. Some
jurisdictions require an actor to retreat in their domicile or place of
business if the aggressor has an equal right to be in the premises, even if the
jurisdiction recognizes the castle doctrine otherwise.
1) Was
designed to prevent cohabitants from engaging in mutual combat.
8. Pursuit
a. An actor
who is justified in defending himself should avoid pursuing an aggressor.
b. The
pursuit of a VCA who is withdrawing can transform the Practitioner into the
aggressor in any subsequent action.
9. Provocation
as motive.
a. Any
action a Practitioner engages in that can be interpreted as provocative will be
reviewed for its role in creating the need for use of force.
10. Mutual
combat as evidence of motive.
a. Failing
to take any opportunity to avoid or disengage an antagonist will be reviewed
for the role those failures played in the need to use force.
IV.
AOJ V. ADEE
A. AOJ
1. AOJ is
the traditional model used by those who must defend themselves while completing
their sworn duty obligation to confront VCA.
2. AOJ
identifies the salient features of behavior that can be indicative of a lethal
threat.
3. Ability
refers to the presence of a dangerous weapon.
a. Any
implement that is employed in a way to create a danger of death or serious
bodily injury.
1) Can be
anything from fists and feet to a firearm.
2) Some
implements are identified in statute as deadly weapons. Eg. Dirks and blackjacks.
3) Any item
that is a force multiplier.
4) Disparity
of size, weight, numbers of assailants, training, able-bodied.
4. Opportunity
refers to the effective striking distance of the weapons system employed by the
VCA.
a. Effective
distance can be mediated by obstacles and the VCA being outside the effective
distance for his weapons system.
b. Avoidance
can be accomplished by maintaining a distance from the VCA that is outside the
effect of his weapons system.
c. Obstacles
can be used to avoid and disengage from a VCA.
d. The failure
to use the options of distance and obstacles can be used to overcome a
Practitioners claim of necessity.
5. Jeopardy
refers to the actions of the VCA that leads to the reasonable conclusion that
force is necessary to interrupt an action that can realistically cause death or
serious bodily injury.
B.
ADEE
1. A model
more appropriate to the non-duty sworn Practitioner who is compelled through
necessity to confront a VCA involves avoidance, disengagement escape and evade.
2. This
model is useful as a tactical strategy and as a framework through which to
describe the objective circumstance that lead to the subjective conclusion that
the use of force was necessary.
NOTE: While it is
common to regard avoidance as meaning staying away from places where stupid
people congregate to do stupid things, it is important to realize that such
people can come to visit you in your home.
It is unwise to allow into your home people who bring actively operant
baggage through your front door. Giving
shelter in your home to someone who is hiding from an abusive spouse is a very
bad idea. Direct them to a service that
is in the business of providing such services.
CONCLUSION
As part of your obligation to
prepare for the rigors of carrying weapons about in society prepared to use
them to protect yourself and those for whom you are legally and morally
responsible, develop a working knowledge of the legal constructs that guide you
towards a determination of objective standards from which you will form your
subjective determination of when it is necessary to employ force.
With application, you will
conclude that the law of justification is consistent with your own value system
and the ADEE model.